Abuharba v. Pritzker

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MOHAMMED ABUHARBA, )

)

Plaintiff, )

)

vs. ) Case No. 3:23-cv-01138-GCS

)

)

J.B. PRITZKER, ANTHONY WILLS, )

WEXFORD, C/O LAWSON, C/O )

JAMES, C/O BRANDT, ROB )

JEFFREYS, C/O MCVEY, )

MOLDENHAUER, and JOHN OR )

JANE DOE PLACEMENT OFFICER, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Mohammed Abuharba, an inmate of the Illinois Department of

Corrections (“IDOC”) who is currently incarcerated at Pontiac Correctional Center,

brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983

based on events that occurred at Menard Correctional Center (“Menard”). In the

Complaint, Abuharba alleges Defendants failed to follow COVID-19 protocols which

exposed him to the virus. He also alleges they were deliberately indifferent to his

conditions of confinement and medical needs in violation of the Eighth Amendment.

This case is now before the Court for preliminary review of the Complaint

pursuant to 28 U.S.C. § 1915A.1 Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any

portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which

relief may be granted, or asks for money damages from a defendant who by law is

immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b).

THE COMPLAINT

In his Complaint, Abuharba notes that in 2020, during the COVID-19 pandemic,

the Centers for Disease Control (“CDC”) issued guidelines on how to prevent the spread

of the virus. Abuharba alleges that Menard Correctional Center staff failed to follow those

guidelines. Abuharba wrote a grievance as well as letters to J.B. Pritzker, Jeffreys, and

Wills in August 2020 informing them of staff’s refusal to follow CDC guidelines. (Doc. 1,

p. 7). He never received a response to any of his letters. Id. at p. 8. Abuharba complained

about staff placing non-infected inmates in quarantine zones, celling inmates together,

and failing to provide inmates with cleaning agents for shared fixtures. Id. Abuharba

alleges the decision to house inmates together prevented inmates from adequately

distancing themselves by six feet as recommended by the CDC. Id.

Abuharba also alleges that Wexford was aware of CDC guidelines but deliberately

understaffed the healthcare unit, suspended medical passes, and failed to take preventive

1 The Court has jurisdiction to screen Abuharba’s Complaint in light of his consent to the full

jurisdiction of a magistrate judge (Doc. 5) and the limited consent to the exercise of magistrate judge

jurisdiction as set forth in the Memorandums of Understanding between the Illinois Department of

Corrections and Wexford and this Court.

measures to mitigate the spread of COVID-19. (Doc. 1, p. 8). He further alleges that

Wexford, Pritzker, Jeffreys, and Wills failed to take preventative measures to ensure

Abuharba did not contract COVID-19. Id.

On November 30, 2020, Abuharba contracted COVID-19. (Doc. 1, p. 8). He was

bed-ridden and in terrible pain. Id. He informed Correctional Officer (“C/O”) Lawson of

his condition and asked for medical attention. Id. Lawson, however, failed to obtain

medical care for Abuharba. Id. The next day, Abuharba informed C/O James of his

symptoms, and James promptly took him to the healthcare unit. Id. at p. 9. Abuharba

tested positive for COVID-19. Id. He was subsequently escorted to the South Cellhouse

by James, which served as the quarantine area of the prison. Id. Abuharba alleges that the

South Cellhouse was previously condemned and deemed unfit to house humans. Id.

Despite the cellhouse being unfit for inmates, Wills and John Doe Placement Officer used

the cellhouse for quarantine purposes. Id.

C/O Brandt opened the cellhouse door for Abuharba when he arrived. (Doc. 1, p.

9). The cellhouse had no ventilation system. Id. Instead, fans were constantly blowing and

circulating contaminated air. Id. at p. 9. While in quarantine, Abuharba and the other

inmates were not allowed to take showers. Id. The sinks also lacked hot water, which

forced the inmates to wash with cold water during the winter. Id. Additionally, there was

mold in the showers and in the air. Id. The water from the sink, which Abuharba used for

drinking and washing, was brown. Id. at p. 9-10.

Abuharba continued to suffer from COVID-19. He later experienced other

symptoms including chest pains, loss of feeling in his fingers and toes, and numbness.

(Doc. 1, p. 10). On June 26, 2021, he sought emergency medical care and was escorted to

the healthcare unit. Id. The medical technician determined that Abuharba had a low heart

rate, and he was scheduled to see a doctor. Id. Abuharba experienced worsening chest

pains and informed McVey, but McVey ignored his requests for immediate care. Id.

Although Dr. Moldenhauer eventually met with Abuharba and ran numerous tests,

including a blood test, vital checks, and an EKG, he was unable to determine the cause of

his symptoms and did not provide any treatment. Id. Abuharba continues to suffer from

the same symptoms with no relief. Id. at p. 11. He believes that the symptoms stem from

contracting COVID-19 while at the prison. Id.

DISCUSSION

Based on the allegations in the Complaint, the Court finds it convenient to divide

the pro se action into the following counts:

Count 1: Eighth Amendment deliberate indifference claim against

J.B. Pritzker, Jeffreys, and Wills for failing to follow CDC

guidelines for the prevention of COVID-19.

Count 2: Eighth Amendment deliberate indifference claim against

Wexford, Pritzker, Jeffreys, and Wills for failing to follow

CDC guidelines and maintain a safe and sanitary living

environment to stop the spread of COVID-19.

Count 3: Eighth Amendment deliberate indifference claim against

Lawson for failing to provide Abuharba with medical care

on November 30, 2020.

Count 4: Eighth Amendment deliberate indifference claim against

James, Brandt, Wills, and John Doe placement officer for the

unconstitutional conditions Abuharba experienced while in

quarantine.

Count 5: Eighth Amendment deliberate indifference claim against

McVey for failing to provide Abuharba with emergency

medical care in June 2021.

Count 6: Eighth Amendment deliberate indifference claim against

Moldenhauer for his treatment of Abuharba’s chest pain in

June 2021.

The parties and the Court will use these designations in all future pleadings and orders,

unless otherwise directed by a judicial officer of this Court. Any other claim that is

mentioned in the Complaint but not addressed in this Order should be considered

dismissed without prejudice as inadequately pled under the Twombly pleading

standard.2

A. Conditions of Confinement Claims

1. Counts 1 and 2

Abuharba alleges that staff at Menard failed to follow CDC guidelines. He alleges

that he informed Pritzker, Jeffreys, and Wills that guidelines were not being followed in

several areas including: the handling and preparation of food, placing infected inmates

in non-quarantine zones, placing non-infected inmates in quarantine zones, failing to

provide inmates with disinfectant, and housing them in a cell with each other. But he fails

to allege that any of the Defendants implemented these policies, only that their staff were

not following guidelines. (Doc. 1, p. 7-8).

2 See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(noting that an action fails to state a

claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is

plausible on its face”).

Further, the failure to follow CDC guidelines does not state a claim. Although he

insists that staff ignored health experts’ recommendations, the Seventh Circuit has

explained that “CDC Guidelines—like other administrative guidance—do not

themselves set a constitutional standard.” Mays v. Dart, 974 F.3d 810, 823 (7th Cir.

2020). “[W]hile the recommendations of these various groups may be instructive in

certain cases, they simply do not establish the constitutional minima; rather, they

establish goals recommended by the organization in question.” Id. (quoting Bell v. Wolfish,

441 U.S. 520, 543 n.27 (1979). Likewise, violations of state laws or policies do not constitute

a violation of the constitution under Section 1983. See, e.g., Pulera v. Sarzant, 966 F.3d 540,

551 (7th Cir. 2020)(noting that a violation of jail policy is not cognizable under Section

1983); Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006)(noting that Section

1983 does not protect plaintiffs from violations of state law or policy).

Abuharba simply fails to plead any facts that show “Defendants’ overall response

was so lacking as to show deliberate indifference to his welfare.” Lawson v. Pritzer, Case

No. 21-CV-4063-MMM, 2022 WL 757932, at *2 (C.D. Ill. Mar. 11, 2022) (citing Money v.

Pritzker, 453 F.Supp.3d 1103, 1131 (N.D. Ill. 2020)(stating that “given the constantly

shifting parameters and guidance regarding how to combat a previously little known

virus, it is worth pointing out that ‘the mere failure . . . to choose the best course of action

does not amount to a constitutional violation.’”) (quoting Peate v. McCann, 294 F.3d 879,

882 (7th Cir. 2002)). While the presence of COVID-19 in the prisons presents a substantial

risk of serious harm, Abuharba fails to plead that Defendants acted with “total unconcern

for [his] welfare.” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012). He states that

Pritzker, Jeffreys, Wills, and Wexford were responsible for ensuring a safe and sanitary

environment to include preventative measures to prevent the spread of COVID-19, but

he fails to point to anything that these defendants did, other than fail to respond to his

letters, which amounted to deliberate indifference. There are no allegations to suggest

their policies or practices in response to the pandemic were so lacking as to show

deliberate indifference. Thus, Counts 1 and 2 are DISMISSED without prejudice.

2. Count 4

As to Count 4, Abuharba alleges once he was diagnosed with COVID-19 and

placed in quarantine, he was subjected to unconstitutional conditions of confinement. He

alleges that Wills and the John Doe placement officer were aware of the conditions

Abuharba faced because the building was condemned prior to being used as the

quarantine cellhouse. Yet despite this knowledge, they ordered that Abuharba and other

inmates be placed in the cellhouse. At this stage, Abuharba states a claim in Count 4

against Wills and John Doe placement officer.

He fails to state a claim, however, against Defendants Brandt and James. Abuharba

only states that James escorted him to the cellhouse and that Brandt opened the door to

the cellhouse when he arrived. There are no allegations to suggest that their actions rose

to the level of deliberate indifference. Showing deliberate indifference is a “high hurdle”

as it requires a showing “approaching total unconcern for the prisoner's welfare.” Rosario,

670 F.3d at 821 (internal quotations and citation omitted). Abuharba fails to allege that

Brandt and James were aware of the conditions or that they had any involvement in his

placement in the cellhouse. They simply escorted Abuharba. These allegations do not rise

to the level of deliberate indifference. Thus, both Brandt and James are DISMISSED

without prejudice.

B. Medical Care Claims

Abuharba’s claims in Counts 3, 5, and 6 relate to the medical care he received after

he contracted COVID-19. The claims include different Defendants and factual allegations

than the claims regarding his conditions of confinement. Accordingly, consistent with

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) and Federal Rules of Civil Procedure 18

and 20, the Court will sever Counts 3, 5, and 6, regarding Abuharba’s medical care, into

a different case with a newly assigned case number.

DISPOSITION

For the reasons stated above, Counts 3, 5, 6 are severed into a new case against

Defendants Lawson (Count 3), McVey (Count 5), and Moldenhauer (Count 6). In the new

case, the Clerk of Court is DIRECTED to file the following documents:

• This Memorandum & Order;

• The Complaint (Doc 1); and

• The motion to proceed IFP (Doc. 6).

The only claims remaining in this case are Counts 1, 2, and 4. Count 4 shall proceed

against Anthony Wills and John Doe placement officer. Counts 1 and 2 are DISMISSED

without prejudice. Wexford, J.B. Pritzker, Rob Jeffreys, James, and Brandt are also

DISMISSED without prejudice.

The Clerk of Court shall prepare for Defendant Anthony Wills: (1) Form 5 (Notice

of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of

Service of Summons).3 The Clerk is DIRECTED to mail these forms, a copy of the

Complaint, and this Memorandum and Order to the defendants’ place of employment as

identified by Abuharba. If a defendant fails to sign and return the Waiver of Service of

Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the

Clerk shall take appropriate steps to effect formal service on that defendant, and the

Court will require that defendant to pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure.

If a defendant can no longer be found at the work address provided by Abuharba,

the employer shall furnish the Clerk with the defendant’s current work address, or, if not

known, defendant’s last-known address. This information shall be used only for sending

the forms as directed above or for formally effecting service. Any documentation of the

address shall be retained only by the Clerk. Address information shall not be maintained

in the court file or disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to

the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g).

Pursuant to Administrative Order No. 244, Defendants need only respond to the issues

stated in this Merit Review Order.

If judgment is rendered against Abuharba, and the judgment includes the

payment of costs under Section 1915, he will be required to pay the full amount of the

3 The Court will not order service on the John Doe Placement Officer until he is identified.

costs, regardless of whether his application to proceed in forma pauperis is granted. See 28

US.C. § 1915()(2)(A).

Finally, Abuharba is ADVISED that he is under a continuing obligation to keep

the Clerk of Court and each opposing party informed of any change in his address; the

Court will not independently investigate his whereabouts. This shall be done in writing

and not later than seven days after a transfer or other change in address occurs. Failure

to comply with this order will cause a delay in the transmission of court documents and

may result in dismissal of this action for want of prosecution. See FED. R. CIV. PROC. 41(b).

IT IS SO ORDERED.

DATED: May 25, 2023. Digitally signed by

. Judge Sison

Diet 0. Dee Date: 2023.05.25

10:11:15 -05'00'

GILBERT C. SISON

United States Magistrate Judge

NOTICE TO PLAINTIFF

The Court will take the necessary steps to notify the appropriate defendants of

your lawsuit and serve them with a copy of your complaint. After service has been

achieved, the defendants will enter their appearance and file an Answer to your

Complaint. It will likely take at least 60 days from the date of this Order to receive the

defendants’ Answer, but it is entirely possible that it will take 90 days or more. When all

the defendants have filed Answers, the Court will enter a Scheduling Order containing

important information on deadlines, discovery, and procedures. Plaintiff is advised to

wait until counsel has appeared for the defendants before filing any motions, to give the

defendants notice and an opportunity to respond to those motions. Motions filed before

defendants’ counsel has filed an appearance will generally be denied as premature.

Plaintiff need not submit any evidence to the Court at this time, unless specifically

directed to do so.

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